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Citing problems with the search warrant, including the hasty signing off by the issuing justice of the peace who was missing a “significant piece of information,” Superior Court Justice Cory Gilmore said she had no choice but to exclude the evidence: 40 kilograms of methamphetamine seized from two homes in York Region.

Wu was a free man.

“Notwithstanding the importance of that evidence and the public interest in having criminal matters heard on their merits . . . there was negligence in the obtaining of the search warrant,” Gilmore said, reading her ruling in Newmarket court earlier this spring.

“The negligence may also extend to the reviewing justice who issued the warrant in less than an hour after receiving it.”

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Gilmore did not identify the justice of the peace. But the judge questioned why the JP had failed to ask about the missing document among the material York Regional Police submitted to establish that they had reasonable and probable grounds to believe a search would yield evidence related to the alleged drug trafficking.

It was like “missing the punchline,” says defence lawyer Leora Shemesh, who successfully argued the Charter application on Wu’s behalf.

But Wu’s relief might prove premature.

The federal public prosecution service is appealing the acquittal, arguing the trial judge erred in law when she found there were no reasonable grounds to arrest Wu or for the warrant to be issued. The judge also erred by excluding the evidence, says the notice, filed with the Ontario Court of Appeal.

The grounds of appeal make no mention of what happened when the police asked a JP to review the search warrant application, which was missing the first page of Appendix 3. “He or she only had page 2, which frankly does not make sense without page 1,” Gilmore stated according to a court transcript. “Since this was a warrant based on both observations and an informant’s tips, the warrant is weakened when only the observations of officers are available.”

With the information missing, the JP should have never signed the warrant, Shemesh says. “This cannot be a rubber stamping process — particularly since we are talking about the sanctity and privacy of peoples’ homes.”

But the prosecution argued the missing page of an appendix was insufficient to set aside the warrant because the information could be found elsewhere in the police documentation.

Gilmore disagreed that other references “cured” the omission.

Shemesh says such foul-ups underscore the need for JPs to have law degrees.

“This case is about those who have the authority to sign search warrants — who may not be legally trained and well-versed in the area of search and seizure,” she says.

As of last year, about 10 per cent of Ontario’s 345 full-time JPs held a law degree, according to a backgrounder to a private member’s bill tabled in the Ontario Legislature by Liberal MPP David Orazietti. Full-time JPs in Ontario are paid $120,652 annually.

The Justices of the Peace Modernization Act proposed to require JPs to hold a law degree and have five years experience practising as a lawyer. The bill expired at the end of the last session and has not been re-introduced.

The bill’s backgrounder notes that Ontario JPs are not required to have a law degree, despite the fact they are now frequently required to make judicial determinations of fact and law on important issues such as bail hearings, search warrants and presiding over trials prosecuted under the Provincial Offences Act.

Also in the backgrounder, York University professor Ian Greene, an expert in Charter rights and judicial administration, expressed his concern about the “antiquated JP system in provinces such as Ontario.”

“I was delighted when Alberta, in 1998, became the first province to require JPs hearing cases to have a legal education,” Greene was quoted saying. “The Supreme Court agreed in 2003 that requiring JPs to have a legal education enhances judicial independence and the quality of justice. Since then, three additional provinces have required JPs hearing cases to be lawyers.”

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